Petition — Anderson v. Charles

| BICHAEL RODAK, JR, CLERN |

in The te te

SUPREME COURT OF THE UNITED STATES

October Term, 1979

Rae 79 a l 3 v4 4

CHARLES ANDERSON, Warden,

State Prison of Southern Michigan at Jackson,

Petitioner,

v

GLENN CHARLES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANK J. KELLEY

Attorney General

Robert A. Derengoski

Solicitor General

Thomas L. Casey

Assistant Attorney General

525 West Ottawa Street

762 Law Building

Lansing, Michigan 48913

PRINTES BY SPEAKER-HINES AND THOMAS, INC., LANSING, MICHIGAN=—1980

Be

TABLE OF CONTENTS

Page

teen Of Authatities .... 5 -.....60. See ii

NN 56 ik A Ae 1

So ok ET MORN bier fad ne 1

PD a. ED ieee eee 2

(Jucets: Penmmated os ee 3

Constitutional and Statutory Provisions Involved ....... 3

Statement of the Case .............................. 3

Reasons for Granting the Writ

I. The Court of Appeals Decision is Based Upon a

Serious Misapprehension of Fact, Is Based Upos a

Misapplication of Doyle v Ohio, 426 US 610 (1976)

and Presents an Important Question of Federal

Law Which Must be Settled by This Court ...... 7

II. The Decision of the Court of Appeals Is In Conflict

with Decisions of Other Courts of Appeals on the

NE TEN Sic on ee dc eek ee ee 13

CN daw 5. A ck eee eee 17

INDEX OF AUTHORITIES

Cases Pages

Chapman v California, 386 US 18 (1967) .............. 11

Charles v Anderson, Warden, 610 F2d 417 (CA 6,1979) .. 2

Doyle v Ohio, 426 US 610 (1976) ....7, 8,9, 10, 12, 14, 15, 16

Linkletter v Walker, 381 US 618 (1965) .............. 12

People v Charles, 58 Mich App 371, 227 NW2d 348 (1975),

lv to appeal den without opinion 397 Mich 815 (1976) 1

Stovall v Denno, 388 US 293 (1967) .................. 12

Twyman v Oklahoma, 560 F2d 422 (CA 10, 1977) |

8s arene er eter An ne to 16

United States v Agee, 597 F2d 350 (CA 3, 1979)

ome den 99 S Ct 2680 (1970) ... 2... cece cee ee 14, 15

United States v Mireles, 570 F2d 1287 (CA 5, 1978) ...13, 14

United States v Mitchell, 558 F2d 1332 (CA 8, 1977) .... 16

Statutes

Memes & CORAL L) occ os eva cedcctdacseseuste. 2

NE oa is. i 50 HN ow wee eX RAE RE Ree See 3

OG ccna cacedaucvendcee cate gigua 3

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1979

CHARLES ANDERSON, Warden,

State Prison of Southern Michigan at Jackson,

Petitioner,

GLENN CHARLES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

‘y

INTRODUCTION

Petitioner Charles Anderson, Warden of the State Prison of

Southern Michigan at Jackson, respectfully prays that a writ

of certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Sixth Circuit entered

in this proceeding on December 4, 1979.

OPINIONS BELOW

Respondent Charles was convicted by a jury in the Wash-

tenaw County Michigan Circuit Court of first degree murder

in 1972 and received the mandatory sentence of life imprison-

ment. The conviction was affirmed by the Michigan Court of

Appeals (see App, p la), People v Charles, 58 Mich App

371, 227 NW2d 348 (1975), lv to appeal den without opinion

ae

397 Mich 815 (1976). In this federal habeas corpus proceed-

ing, Respondent Charles’ claims were rejected in a magistrate’s

Recommendation and Report dated November 16, 1978 ( App,

p 16a) which was accepted and entered as the findings and

conclusions of the United States District Court for the Eastern

District of Michigan in a Judgment (App, p 26a) and

Order of Dismissal (App, p 27a) dated December 28, 1978.

On appeal, a majority of the United States Court of Appeals

for the Sixth Circuit entered an opinion and judgment (App,

p 28a) Cherles v Anderson, Warden, 610 F2d 417 (CA 6,

1979) which concluded that Respondent Charles’ constitu-

tional rights had been violated at his state court trial and

ordered the case remanded to the District Court with direc-

tions to issue a writ of habeas corpus unless Charles is tried

again in the state court within a reasonable time. A timely

motion for rehearing with a request for rehearing en banc

was denied by the Sixth Circuit’s order entered January 22,

1980 (App, p 45a) and on February 6, 1980 the Sixth Circuit

entered its order staying the mandate for 30 days pending

application to this Court for writ of certiorari.

JURISDICTION

The judgment of the Court of Appeals for the Sixth Circuit

was entered on December 4, 1979 and its order denying the

petition for rehearing was entered on January 22, 1980. This

Petition for Certiorari is filed within 90 days of that date.

Pursuant to a timely motion filed in the Court of Appeals,

an order staying the mandate of the Court of Appeals pending

application to this Court for writ of certiorari was entered

on February 6, 1980 and this petition was filed within 30

days of that date. This Court’s jurisdiction is invoked under

28 USC § 1254(1).

ee

QUESTIONS PRESENTED

1. May a state court defendant who has made a post-

arrest statement inconsistent with his exculpatory trial tes-

timony be cross-examined about the fact that the post-arrest

statement was not the same as the exculpatory story told at

trial?

2. Assuming, arguendo, that constitutional error occurred

in the cross-examination, was it harmless beyond a reasonable

doubt?

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

US Const, Am XIV, § 1 (in pertinent part):

“°° nor shall any State deprive any person of life,

liberty, or property, without due process of law... .”

STATEMENT OF THE CASE

This is a habeas corpus case in which the jurisdiction of the

District Court was invoked under 28 USC § 2254. Respondent

Charles alleged numerous infirmities in the state court trial

which resulted in his conviction of murder, but the District

Court denied relief. The Court of Appeals, whose jurisdiction

was based upon 28 USC § 1291, reversed in a divided opinion

and remanded the case to the District Court with directions to

issue a writ of habeas corpus unless Respondent is tried again

in the state court within a reasonable time. The Court of Ap-

peals concluded that although Charles was properly cross-

examined about a prior inconsistent statement, the prosecutor

violated Charles’ constitutional rights during cross examination

Laie

@bout Charles’ failure to tell the arresting officers the exculpa-

tory story he later told at trial. The Court also concluded that

the error was not harmless beyond a reasonable doubt.

In July, 1971, Theodore Zietle was strangled to death by an

electrical cord in his home in Ann Arbor, Michigan. His head

had been badly battered and the body was found in a pool

of blood. Much of the house was in disarray and several items

of personal property as well as decedent’s automobile were

missing. Mr. Ziefle had been last seen alive on the evening of

July 24, 1971 when he entered his house in the company of

another man wearing a black T-shirt. On July 30, 1971, four

days after Mr. Ziefle’s body had been discovered, two Grand

Rapids police officers noticed an automobile conforming to

the description sent out by Ann Arbor officials. They were

able to apprehend the driver, Respondent Glenn Charles,

after a chase by automobile and on foot.

At trial, a prosecution witness testified (Trial tr 175-186)

that she met Respondent Charles on the evening of July 25

in Grand Rapids. He was wearing a black T-shirt at the time

and he told her that he had escaped from the State Prison

of Southern Michigan at Jackson and had hitchhiked a ride

with a “faggot” whom he murdered and whose car he stole.

He further stated that he had money that he had stolen from

the victim, as well as personal belongings such as a camera,

rings, a suitcase and a wallet. Charles further stated that his

hands were deadly weapons and he discussed the time it took

to strangle a person. This testimony was corroborated by sev-

eral other prosecution witnesses.

Robert LeVanseler, a detective of the Ann Arbor Police

Department, traveled to Grand Rapids and interviewed Charles

on the morning of July 30, 1971 after reading him the Miranda

warnings. Charles told Detective LeVanseler that he had

stolen the deceased’s automobile from the vicinity of Washte-

ee a:

naw and Hill Streets in the City of Ann Arbor, a location

which is about two miles from the courthouse and bus station.

(Tr 237-239).

Respondent Charles testified in his own defense. He testi-

fied that he had escaped from the State Prison at Jackson

on the morning of July 22, 1971, had hitchhiked to Ann

Arbor and that he had spent most of his time walking around

a street festival in Ann Arbor. He claimed that he had stolen

the deceased’s car during the night of July 25, 1971 from a tire

company adjoining the bus station in Ann Arbor. He claimed

that the items of personal property had been found in the

trunk of the car. During cross-examination by the prosecutor,

the following colloquy occurred (Trial tr 302-304):

“Q. Now, this Kelly’s Tire Company, that’s right next

to the bus station, isn’t it?

“A. That’s correct.

“Q. And, the bus station and Kelly’s Tire are right

next to Washtenaw County Jail are they not?

“A. They are.

“Q. And, when you're standing in the Washtenaw

County Jail looking out tae window you can look right

out and see the bus station and Kelly’s Tire, can you not?

“A. That’s correct.

“Q. So, you've had plenty of opportunity from—well,

first you spent some time in the Washtenaw County Jail,

haven't youP

“A. Quite a bit.

“@. And, you have had plenty of opportunity to look

out that window and see the bus station and Kelly’s tire?

“A. That’s right.

“Q. And, you’ve seen cars being parked there, isn’t

that right?

“A. That’s correct.

“Q. Is this where you got the idea to come up with

the story that you took a car from that location?

“A. No, the reason I came up with that is because it’s

the truth.

“Q. It’s the truth?

“A. That's right.

“Q. Don't you think it’s rather odd that if it were the

truth that you didn’t come forward and tell anybody at

the time you were arrested, where you got that car?

“A. I wasn’t charged with auto theft, I was charged

with murder.

“Q. Didn't you think at the time you were arrested

that possibly the car would have something to do with

the charge of murder?

“A. When I tried tu talk to my attorney they wouldn't

let me see him and after that he just said to keep quiet.

“Q. This is a rather recent fabrication of yours isn’t it

not?

“A. No, it isn’t.

“Q. Well, you told Detective LeVanseler back when

you were first arrested, you stole the car back on Wash-

tenaw and Hill Street?

“A. Never spoke with Detective LeVanseler,

“Q. Never did?

“A. Right, except when Detective Hall and Price were

there and then it was on tape.”

Charles was convicted of first degree murder, sentenced

to life imprisonment and the conviction was upheld in the

Michigan appellate courts. The United States District Court

denied habeas corpus relief, but the Sixth Circuit Court of

Appeals reversed, App, p 34a:

“The question we must address is whether a defendant

who has made a post-arrest statement inconsistent with

his exculpatory trial testimony may be cross-examined not

only about his prior inconsistent statement but also about

his post-arrest failure to tell the arresting officers the ex-

culpatory story he told at his trial. For the reasons here-

inafter set forth, we hold that he may not, and, accord-

ingly, reverse.”

REASONS FOR GRANTING THE WRIT

THE COURT OF APPEALS DECISION IS BASED UPON

A SERIOUS MISAPPREHENSION OF FACT, IS BASED

UPON A MISAPPLICATION OF DOYLE v OHIO, 426

US 610 (1976) AND PRESENTS AN IMPORTANT QUES-

TION OF FEDERAL LAW WHICH MUST BE SETTLED

BY THIS COURT.

In Doyle v Ohio, 426 US 610 (1976) this Court held that

when a defendant has remained silent after receiving Miranda

warnings at the time of his arrest such silence is “insolubly

ambiguous” and therefore a state prosecutor may not, con-

ae.

sistent with due process, seek to impeach an exculpatory story

told for the first time at trial by cross-examining the defendant

about his post-arrest silence. Doyle dealt only with cross-

examination as to post-arrest silence and did not invlove any

question of cross-examination about prior inconsistent state-

ments although footnote 11 of the opinion, 426 US at 619

indicates that the prosecution could use the fact of post-arrest

silence to contradict a defendant who testifies to an exculpatory

version of events and claims to have told the police the same

version on arrest since in that situation the fact of earlier

silence would be used to challenge the defendant’s testimony

as to his behavior following arrest. Nothing in the decision

or rationale of Doyle operates to preclude full cross-examina-

tion about prior inconsistent statements and the holding of

the Court of Appeals to the contrary presents an important,

recurring question of federal law which must be settled by

this Court.

It must first be noted that although Charles was initially

arrested by Grand Rapids City Police officers there is nothing

in this record to indicate that any questioning took place at

that time. The entire cross-examination which has been

challenged in this habeas corpus proceeding relates to ques-

tioning conducted by Ann Arbor Detective LeVanseler. This

is apparent when the entire challenged colloquy is viewed in

proper context because although the prosecutor used the

phrase “at the time you were arrested” it is apparent that

he is talking about an arrest made by the Ann Arbor detective

rather than the Grand Rapids officials:

“Well, you told Detective LeVanseler back when you

were first arrested, you stole the car back on Washtenaw

and Hill Street?” (emphasis added)

The Court of Appeals admits that cross-examination about

the prior inconsistent statement was constitutionally permis-

a

sible (App, p 37a), but went on to hold that the post-arrest

failure to tell the same story he told at trial is insolubly

ambiguous and therefore the cross-examination violated due

process (App, p 38a). The State of Michigan contends that

the Court of Appeals decision is based upon a misapprehension

of fact because when the entire cross-examination (rather than

the few sentences quoted out of context in the Court of

Appeals opinion, App, p 37a-38a) is viewed in context it is

readily apparent that the prosecutor’s questions related only

to the inconsistency between Charles’ post-arrest statement

and his trial testimony and the cross-examination did not

relate to a mere post-arrest failure to tell the same story told

at trial. The State also contends that the Court of Appeals

opinion is based upon a misapplication of Doyle v Ohio, be-

cause when the entire exchange is viewed in context, it is ap-

parent that at the time of which the prosecutor was speaking

(the arrest and interrogation by the Ann Arbor detective )

Charles did not remain silent. Instead he made an affirmative

statement which was significantly inconsistent with his later

trial testimony. This affirmative statement cannot be deemed

to be insolubly ambiguous in the same sense as the silence in

Doyle. Rather, the inconsistency opened the door to per-

missible prosecutorial cross-examination and impeachment.

When viewed in context, it is apparent that the prosecutor's

cross-examination was aimed only at exploring the incon-

sistency between Charles’ post-arrest statement and his later

trial testimony. In order to explore the inconsistency, the

prosecutor obtained Charles’ admission that during the time

spent in the Washtenaw County Jail he had seen cars being

parked behind the tire company and then asked if this was

where Charles “got the idea to come up with the story that

you took a car from that location?” Charles then asserted that

his trial testimony was the truth, thus necessarily implying

that the inconsistent post-arrest statement was false. Under

these circumstances, the prosecutor’s next question (“Don’t

-_

you think it’s rather odd that if it were the truth that you

didn’t come forward and tell anybody at the time you were

arrested, where you got that car?”) can only be viewed as

further exploration of the inconsistency and not as an attempt

to impeach by post-arrest silence. This interpretation of the

exchange is buttressed by the fact that the prosecutor im-

mediately inquired whether the trial testimony was “a rather

recent fabrication” and then made explicit reference to the

inconsistent post-arrest statement. The record of this trial

clearly indicates that Charles did more than merely fail to

tell arresting officers the same story he told at trial. Rather,

he affirmatively offered an explanation which was inconsistent

with his later trial testimony. Such conduct is more than

mere silence as in Doyle; it is an affirmative inconsistent act

which may permissibly be subject to cross-examination at

trial. Such inconsistent statements do not suffer from the

inherent insoluble ambiguity of silence such as in Doyle

bec.ise the inconsistency has evidentiary value since it

serves to impeach a defendant's credibility. Although, as the

Court £ Appeals majority opinion states, there may be more

than one explanation for inconsistent statements, a defendant

under these circumstances has the opportunity to offer an

explanation and there is nothing constitutionally impermissible

about permitting cross-examination about the inconsistency.

The majority opinion of the Court of Appeals, holds, in

effect, that where a defendant gives story A following his

arrest and story B at trial, the prosecutor may cross-examine

him about the inconsistency, but may not ask why he

failed to tell story B and instead told story A following his

arrest. The State of Michigan submits that such a distinction,

if it exists, is highly artificial, is virtually incapable of applica-

tion in the heat of cross-examination of a hostile and evasive

witness and is unnecessary in order to insure a fair trial for a

criminal defendant. If a defendant has in fact remained silent

following his arrest, his silence may be mere reliance on the

a

Miranda warnings and there is justification for prohibiting

cross-examination about the silence. On the other hand, where

a defendant has foregone his right to remain silent and has

affirmatively offered a post-arrest statement which is incon-

sistent with subsequent trial testimony, there is no principled

basis for prohibiting complete cross-examination about the in-

consistency.

Assuming, arguendo, that the prosecutor's cross-examination

amounted to a constitutional violation, the State of Michigan

submits that under the facts of this case any error was harm-

less beyond a reasonable doubt. The harmless error rule was

enunciated in Chapman v California, 386 US 18 (1967) in

which this Court said that harmless error analysis requires a

determination whether there is a reasonable possibility that

the evidence complained of might have contributed to the

conviction. It must be recalled that the alleged constitutional

error in this cross-examination consists only of one or two

sentences which occurred during a cross-examination com-

prising almost 100 pages of trial transcript. Evidence was

adduced against Charles placing him in Ann Arbor on the

day of the murder and in possession of the murder victim’s

automobile and numerous personal belongings which had been

taken from the victim’s residence. Prosecution witnesses tes-

tified that when Charles first arrived in Grand Rapids he was

wearing clothing similar to that worn by the person last seen

with the deceased and they further testified that Charles had

boasted about his hands as deadly weapons, had been knowl-

edgeable about strangulation, and had admitted robbing, hit-

ting and murdering a man in Ann Arbor. Upon review of the

entire trial record, Petitioner submits that it is clear that any

error in cross-examination was harmless beyond a reasonable

doubt.

ii.

Although the State contends that no violation of the Doyle

rationale occurred or, alternatively, that any such error was

harmless beyond a reasonable doubt, there is yet another rea-

son why this Court should review and reverse the Court of

Appeals. In several cases including Linkletter vy Walker, 381

US 618 (1965) and Stovall vy Denno, 388 US 293 ( 1967 )

this Court has said that constitutional rules of criminal procedure

may be given prospective effect only where necessary after

Siving consideration to (a) the purpose to be served by the

new standard, (b) the extent of reliance by law enforcement

authorities on the old standards, and (c) the effect on the

administration of justice of a retroactive application of the

new standards. In the instant case, the crime was committed,

the trial was held and the conviction affirmed by the Michi-

gan Court of Appeals before this Court issued its Doyle deci-

sion on June 26, 1976. Under these circumstances, the State

submits that this case presents an important federal question

as to whether Doyle should be given retroactive application

to Respondent Charles.

r

THE DECISION OF THE COURT OF APPEALS IS IN

CONFLICT WITH DECISIONS OF OTHER COURTS

OF APPEALS ON THE SAME MATTER.

The Court of Appeals in the present case held that the

prosecutor's questions dealt with two separate issues, one

permissible (cross-examination about the prior inconsistent

statement) and the other impermissible (cross-examination

about Charles’ failure to tell arresting officers the same story

he told the jury). The State of Michigan disagrees with the

Court of Appeals distinction and submits that the record indi-

cates only proper cross-examination about prior inconsistent

statement, but if the Court of Appeals analysis is correct, it

is apparent that its decision is in direct conflict with at least

one other decision rendered by a different Court of Appeals.

In United States v Mireles, 570 F2d 1287 (CA 5, 1978) the

defendant was driving a truck when he was stopped by Border

Patrol agents. Inspection of the back of the truck led to the dis-

covery of 1,850 pounds of marijuana. The Border Patrol agent

testified that defendant Mireles was placed under arrest, given

the Miranda warnings and acknowledged that he fully under-

stood his rights. The agent testified that defendant stated

that the marijuana was not his, that he had not known of its

presence and that he had merely borrowed the truck from his

uncle to move his own furniture to his new residence. Defend-

ant Mireles testified at trial that he had been paid by a man

named Rivas to move Rivas’ furniture. Thus, defendant’s trial

version of the incident contradicted the Border Patrol agent’s

testimony that immediately after the arrest defendant had

. Stated that the furniture in the rear of the truck belonged to

him. On cross-examination, the prosecutor asked the defend-

ant whether he had told the Border Patrol agents about the

an Won

man named Rivas and the defendant admitted that he had not.

In his closing argument, the prosecutor alluded to the defend-

ant’s failure to tell the arresting officers that same story he

later told at trial. 570 F2d at 1292, fn 8. Defendant was con-

victed of possession of marijuana with intent to distribute and

on appeal alleged that there had been a violation of Doyle v

Ohio, supra, 426 US 610 (1976).

The Fifth Circuit recognized that a crucial issue in the case

was the inconsistency between the defendant’s exculpatory

story told at trial and the Border Patrol agent’s testimony

regarding defendant’s earlier inconsistent statements. The court

concluded that despite the defendant’s claims, his silence was

not at issue because the government was concerned with in-

consistencies between his two stories. The court further noted

that the defendant’s failure to mention Mr. Rivas either before

or atter his arrest bolstered the agent’s testimony that defend-

ant claimed that the furniture was his and that the truck was

borrowed from his uncle. The conclusion of the Mireles court,

970 F2d at 1293 is directly inconsistent with the conclusion of

the Court of Appeals in the instant case:

“Therefore, the prosecutor's questions and argument

were not an impeachment by silence, as in Doyle, but

merely an effort to impeach by prior statements that were

inconsistent with defendant's testimony at trial. There is

no ‘insoluble ambiguity’ of silence as noted in Doyle,

sine defendant Mireles waived his right to remain silent,

and denied knowledge of the presence of the contraband

after his arrest. Doyle’s protection of the right to remain

silent does not apply to cross-examination and argument

concerning a defendant's exculpatory explanation given

after the Miranda warnings.”

In United States v Agee, 597 F2d 350 (CA 3, 1979) cert den

99 S Ct 2889 (1979) the defendant’s conviction of possession of

oa

heroin was upheld on appeal despite a claim that the prose-

cutor’s cross-examination had violated Doyle vy Ohio, supra.

The defendant testified that while driving a taxicab he was

stopped for traffic violations and as the policeman approached

his vehicle a passenger in the cab threw a pack of silver foil

(later determined to contain heroin) to defendant and that

defendant picked it up. He testified that he was confused and

started to throw the bag back to the passenger and that he

didn’t know whether to throw it out the window or what to

do with it so he attempted to hide it in a console and under

the seat of the car. Defendant then exited the car and ap-

proached the police officers and in reply to a question from

one of the officers, defendant stated that he did not have any

dope on him. He testified that his purpose in approaching the

policemen was to keep them from coming up to his car and

that what was in his mind was to tell his passenger to take

his stuff and get out of the car. The prosecutor then asked

Agee whether it wasn’t in his mind to say to the police, “that

man in my car has dope. Arrest him” and defendant replied in

the negative. The Third Circuit rejected the claim based on

Doyle v Ohio because the testimony revealed that the defend-

ant had made statements to the police which he knew to be

false and which he hoped would prevent them from discover-

ing an ongoing crime. Under such circumstances the court

concluded the defendant had not remained silent. The court

held that Doyle “can have no application to a case in which the

defendant did not exercise his right to remain silent.” 597 F2d

at 395 (emphasis in original). The following summation from

Agee, 597 F2d at 356 demonstrates its conflict with the Court

of Appeals holding in the instant case:

“Here, as we have indicated, the record reveals un-

equivocally that Agee did not exercise his right to remain

silent regarding the facts of the incident. Nor did the

prosecutor suggest that he did. Instead, the thrust of her

questions and her argument was that Agee made a delib-

=— ee

csa@kee choice to lie to the police in order to conceal from

them an ongoing crime. If we were to hold that a prosecu-

tor may not question or refer to a defendant’s statements

and conduct which were designed to deceive the police

regarding the commission of a crime, we would be ex-

tending the holding of Doyle far beyond its rationale.

This we decline to do.”

Other cases which demonstrate a conflict, at least in prin-

ciple, with the decision of the Court of Appeals include

Twyman v State of Oklahoma, 560 F2d 422 (CA 10, 1977) cert

den 434 US 1071 in which the defendant turned himself in to

FBI agents and after receiving the Miranda warnings gave a

detailed account of his recent activities including his associa-

tion with the murder victim. The defendant also testified at

trial, where he again gave a purportedly full and detailed

accounting of his activities, and on cross-examination he was

questioned regarding the fact that he waited until trial to

furnish information regarding the murder weapon. The court

held that because he had made a statement, he opened himself

up to full cross-examination the same as any other witness and

there was no constitutional violation when he was cross-

examined about his omission in the post-arrest statement. Sim-

ilarly in United States v Mitchell, 558 F2d 1332 (CA 8, 1977)

the defendant was convicted of transporting a stolen motor

vehicle in interstate commerce and concealing the vehicle. The

day after his arrest and after receiving Miranda warnings,

defendant submitted to questioning by the police and stated

that he was going to St. Louis to attend the funeral of a homi-

cide victim named Jesse Owens. When confronted with the

information that there had been no homicide victim by that

name, defendant remained silent and later objected to testi-

mony claiming a violation of Doyle v Ohio, supra. The Eighth

Circuit noted, 558 F2d at 1335 that false exculpatory state-

ments are admissible at trial as tending to indicate guilt and

that his silence when confronted with the apparent falsity of

= a

his post-arrest statement serves to support the inference that

he had lied to cover up that fact that he had been fleeing in a

stolen car. The court found no constitutional error.

CONCLUSION

For the foregoing reasons a writ of certiorari should issue to

review the judgment and opinion of the Sixth Circuit.

Respectfully submitted,

FRANK J. KELLEY

Attorney General

Robert A. Derengoski

Solicitor General

Thomas L. Casey

Assistant Attorney General

525 West Ottawa Street

762 Law Building

Lansing, MI 48913

(517) 373-1124

APPENDIX

TABLE OF CONTENTS

Page

People v Charles, 58 Mich App 371, 227 NW2d 348 (1975)

lv to appeal den without opinion 397 Mich 815 (1976) la

District Court Magistrate’s Recommendation and Report

fo ee er ee 16a

District Court Judgment (December 28, 1978) .:..... 26a

District Court Order of Dismissal

I TUNE cove hc ov kd ce bv eWadbace sues 27a

Charles v Anderson, Warden 610 F2d 417

Nirah gre oy cbs we eR TARO Lh 28a

Order Denying Motion for Rehearing

CE 05s ey ri oe oe vce bebaadednceee 45a

People v Charles, 58 Mich App 371 la

[58 Mich App 371]

PEOPLE v CHARLES

[58 Mich App 373]

Appeal from Washtenaw, William F. Ager, Jr., J. Submitted

Division 2 January 7, 1975, at Lansing. (Docket No. 18248. )

Decided February 10, 1975.

Glenn G. Charles was convicted of first-degree murder.

Defendant appeals. Affirmed.

[58 Mich App 374]

Frank J. Kelley, Attorney General, Robert A. Derengoski,

Solicitor General, William F. Delhey, Prosecuting Attorney,

and John J. Hensel, First Assistant Prosecuting Attorney, for

the people.

Roger L. Wotila, Assistant State Appellate Defender, for

defendant.

Before: Danhof, P.J., and McGregor and Walsh, JJ.

Danhof, P.J. Defendant was convicted of first-degree

murder, MCLA 750.316; MSA 28.548, and given the mandatory

sentence of life imprisonment. One year later, his application

for delayed appeal was granted. He raises numerous issues,

the merits of which vary greatly, but none of which necessitate

reversal.

On July 26, 1971 the body of Mr. Theodore Ziefle was dis-

covered in the foyer of his home by his half brother and mem-

bers of the Ann Arbor Police Department. The body, clad

only in a pair of trousers, was found in the front hallway at the

foot of the stairs leading to the second floor. Decedent’s head

2a People v Charles, 58 Mich App 371

had been badly battered ana he was lying on his back in a

pool of blood. A lamp from wh ch the electrical cord had been

removed was found near the vody, as were parts of a wooden

clothes hanger. The electrical cord itself was wrapped and

knotted around the decedent’s neck.

The bedroom was in disarray, and a collection of silver coins

totalling at least $100 in face value was missing from the

closet. Five bank passbooks and an old style camera were

also taken. The decedent’s automobile, a Buick Skylark, was

not in the garage.

Medical examination of the body disclosed that Mr. Ziefle

had died on July 24 or 25, 1971. Death [58 Mich App 375]

was caused by strangulation resulting from the knotting and

twisting of the electrical cord around decedent’s neck so

tightly that it was bured in the layers of skin which were

swollen and discolored. Clotted blood and mucus material

filled the mouth and nasal passages, and the decedent's

tongue was engorged and protruding. A bone located in the

throat just above the voice box called the hyoide was fractured

at three places. The body showed evidence of a severe beating

including abrasions and contusions around the eyes and nose,

and an area of thickening and swelling in the back of the head.

An alert to watch for Mr. Ziefle’s 1965 Buick automobile was

teletyped to the police agencies in Michigan. Mr. Ziefle’s

house was examined by technical experts who discovered blood

of decedent’s type in the bathroom sink, and hair samples

matching his on the banister leading to the second floor. No

unaccounted for latent fingerprints were found. Photographs

of the entire area were taken, including the front porch where

two newspapers were still lying.

On July 30, 1971 two Grand Rapids police officers on

patrol noticed a 1965 Buick which conformed to the descrip-

People v Charles, 58 Mich App 371 3a

tion sent out by the Ann Arbor police department. They

were able to apprehend the driver, who was later identified

as the defendant, after a chase by automobile and on foot.

Two women were in the car with the defendant when he was

arrested.

The women had come to know the defendant through a

meeting in a Grand Rapids park. The defendant told a num-

ber of people in the park that he was driving a “hot car”,

and that its owner was dead. He went on to inform them that

he murdered a man in Ann Arbor, took his car, and [58 Mich

App 376] that the man was a sexual deviate. He explained

how long it takes to strangle a person, boasting that his hands

were deadly weapons, and listing the items, including old

silver coins, that he had stolen. Some of the items given by

the defendant to the women were later identified as having

belonged to decedent.

Defendant testified that he was a prison escapee, and that

on the night of July 24, 1971 he went to a movie in an Ann

Arbor theater. Later that night, he stated that he discovered

the decedent’s automobile in a parking lot behind a tire store

with the keys in the ignition. He took the car and went

directly to Grand Rapids where he subsequently discovered

the various possessions of the decedent in the trunk.

Near the midpoint in the trial, an unidentified member of

the jury sent a note to the trial judge inquiring whether or

not they could ask a question of two of the witnesses. The

juror was interested in knowing the dates of the two news-

papers found on the porch of the decedent’s house. The ques-

tion was to be directed to a police officer who took the

photographs of the scene, or to decedent’s brother who was

with the police officers when the body was discovered. In

4a People v Charles, 58 Mich App 371

response to this inquiry, the trial court gave the following in-

struction to the jury:

“Again, as I told you yesterday, don’t talk about the case

with anyone, don’t discuss it with each other until you’ve heard

all the testimony. I might state this in answer to a question

the jury can’t ask questions. Some jurisdictions maybe they

permit the jury to ask questions but we can’t permit the jury

to ask questions. If you have a question in your mind we can’t

help you [58 Mich App 377] under our system in Michigan.

A jury is not permitted to ask questions. But if you don’t hear

anything of course then you stand up or shout or raise your

hand, let us know about it if you don’t hear something, but

not to ask questions. Alright, tomorrow morning, 9:00, don’t

read the paper anything like that, that has anything to do with

this case.”

This instruction was erroneous. The propriety of permitting

jurors to question witnesses was characterized by your Supreme

Court in People v Heard, 388 Mich 182; 200 NW2d 73 (1972)

as an issue of first impression in the State of Michigan. After

analyzing the resolution of this issue in other jurisdictions, the

Court decided the question for this State:

“We hold that the questioning of witnesses by jurors, and

the method of submission of such questions, rests in the

sound discretion of the trial court. The trial judge may permit

such questioning if he wishes, and we hold that it was error

for the judge to rule that under no circumstances might a

juror ask any questions.” People v Heard, supra, 388 Mich 188.

Although the error in the trial court’s instruction is now

manifest, it was not at all evident at the time of trial. The

Heard case was decided on August 30, 1972. The advance

sheets containing this opinion were mailed on or about October

3, 1972. Trial in the present case began on September 25, and

People v Charles, 58 Mich App 371 5a

the complained of instruction was given to the jury by the

learned trial judge on September 26, 1972. Thus, while

technically there is no problem with retroactivity in that this

case was tried after the date of the decision in Heard, the

trial judge had no way of knowing that the instruction he gave

was no longer an accurate statement of the law.

An analogous problem was presented to this [58 Mich App

378] Court in People v Glover, 47 Mich App 454; 209 NW2d

533 (1973). In that case, the prosecution’s chief witness was

a 16-year-old boy whose credibility defense counsel sought

to impeach by use of his juvenile record. The trial court gave

both parties 15 minutes to research the law on this point.

Relying on what the trial court, defense counsel, and the

prosecutor conceived to be the current state of the law, the

trial court refused to permit the juvenile records to be used

for impeachment purposes and instructed the jury not to con-

sider any of the previously permitted testimony having to do

with the witness's juvenile court record. On appeal, this Court

discussed the practical difficulties inherent in a situation of

this kind:

“The law at the time of defendant’s trial clearly permitted

the use of a juvenile record for the impeachment of a witness

who, as here, was not himself a defendant. People v Davies,

34 Mich App 19; 190 NW2d 694 (1971); People v Basemore,

36 Mich App 256; 193 NW2d 335 (1971). Davies and Base-

more were printed in the advance sheets approximately three

months and two weeks respectively before the start of de-

fendant’s trial. These cases represented a shift of the law,

and we do not deem either the prosecutor or the defense

counsel negligent in failing to discover them within the 15

minutes allocated to research the impeachment question. How-

ever, the trial court was bound to follow the law nothwith-

standing the fact that it was not called to the court’s attention.”

People v Glover, supra, 47 Mich App 457, 458.

6a People v Charles, 58 Mich App 371

Concluding that the trial court erred, the opinion points

out that no objection to the ruling and instruction was made

at trial, and that review must be confined to ascertaining

whether or not a miscarriage of justice has occurred. This is

the standard generally applicable to issues raised for the first

time on appeal without benefit of preser- [58 Mich App 379]

vation by timely objection in the lower court, and to allega-

tions of instructional error in particular. GCR 1963, 516.2,

MCLA 769.26; MSA 28.1096; People v Mitten, 44 Mich App

64; 205 NW2d 47 (1972); People v Bradley, 54 Mich App 89;

220 NW2d 305 (1974); People v Adams, 48 Mich App 595;

210 NW2d 888 (1973). It has been held that, in the absence

of a timely objection or request, this standard must be

satisfied to invoke the rule in Heard. People v Justice, 50 Mich

App 55; 212 NW2d 762 (1973), lv den, 391 Mich 792 (1974).

Understandably in the present case, no objection to the

trial court’s ruling and instruction was made. Therefore, we

have closely examined the record in an effort to determine

if this error has resulted in a miscarriage of justice necessitat-

ing reversal. We conclude that it has not.

The information concerning the newspapers on the porch

which was requested from the two witnesses named in the

note was later provided by two other prosecution witnesses.

A police detective testified extensively with respect to the

newspapers, establishing that the two papers found on the

porch were the Ann Arbor News for Sunday, July 25, and

Monday, July 26, 1971; while the papers for Friday, July 23

and Saturday, July 24 were found in the kitchen of decedent’s

house. Later in the trial, another detective confirmed the dis-

covery of the newsapers on the front porch. Where a witness

is erroneously prevented from answering a question, but the

same information which would have been given is otherwise

related to the jury, the error will not in itself require reversal.

People v Charles, 58 Mich App 371 7a

People v Berrier, 48 Mich App 454; 210 NW2d 506 (1973),

lv den, 390 Mich 813 (1973).

The information which might have been elicited from the

witnesses had the jury been allowed to [58 Mich App 380]

submit questions to them could very conceivably have been |

damaging to defendant’s case. For example, the newspapers

were of some probative value in establishing the time of Mr.

Ziefle’s death. Thus, defense counsel may have elected not to

raise any objection to the trial court’s ruling and instruction

as a matter of trial tactics to prevent the jury from uncovering

weaknesses in the defendant's case. People v Burks, 48 Mich

App 484; 210 NW2d 495 (1973); People v Carter, 54 Mich

App 69; 220 NW2d 330 (1974).

In Heard, defense counsel raised the issue of juror ques-

tioning of witnesses in his opening statement and pursued the

issue throughout the lengthy discussion reproduced in the

Supreme Court’s opinion. People v Heard, supra, 388 Mich

184-186. Defense counsel intended to incorporate jury par-

ticipation as a part of his trial strategy. There is absolutely

no doubt that the question there was properly preserved for

appellate consideration.

II

Defendant argues that the prosecutor elicited from him on

cross-examination testimony which indicated that he had ex-

ercised his right to remain silent at the time of his arrest.

This argument is not supported by the facts of the case.

Before the defendant took the stand, Detective LeVanseler

testified that the defendant had told him shortly after his

arrest that he had taken decedent's car from the vicinity of

Washtenaw and Hill Streets in the City of Ann Arbor. On

direct examination, the defendant testified that he took the

car from the parking lot of a tire store located next to the

Sa People v Charles, 58 Mich App 371

county jail. The defendant's appellate counsel quotes a small

passage from the trial transcript to [58 Mich App 381] sup-

port his claim that the prosecutor inquired concerning de-

fendant’s decision to exercise his right to remain silent. Con-

sideration of a slightly greater portion of the transcript of the

prosecutor's cross-examination of the defendant discloses that

the prosecutor was not referring to the defendant's exercise of

his right to remain silent; rather, he was asking the defendant

why, if that version were true, he didn’t tell the officer that

he stole the decedent’s car from the tire store parking lot

instead of telling him that he took it from the street:

“Q. (by the prosecuting attorney): Now, this Kelly’s

Tire Company, that’s right next to the bus station, isn’t it?

“A. (by defendant): That’s correct.

“Q. And, the bus station and Kelly's Tire are right next

to the Washtenaw County Jail are they not?

“A. They are.

»

“Q. And, when you're standing in the Washtenaw County

Jail looking out the window you can look right out and see

the bus station and Kelly's Tire, can you not?

“A. That’s correct.

“Q. So, you've had plenty of opportunity from — well,

first you spent some time in the Washtenaw County Jail,

haven't you?

“A. Quite a bit.

“Q. And, you have had plenty of opportunity to look out

that window and see the bus station and Kelly’s tire?

“A. That's right.

People v Charles, 58 Mich App 371 9a

“Q. And, you've seen cars being parked there, isn’t that

right?

“A. That’s correct.

“Q. Is this where you got the idea to come up with the

story that you took a car from that location?

“A. No, the reason I came up with that is because it’s the

truth.

[58 Mich App 382] “Q. It’s the truth?

“A. That's right.

“Q. Don't you think it’s rather odd that if it were the truth

that you didn’t come forward and tell anybody at the time

you were arrested, where you got that car?

“A. I wasn’t charged with auto theft, I was charged with

murder.

“Q. Didn't you think at the time you were arrested that

possibly the car would have something to do with the charge

of murder?

“A. When I tried to talk to my attorney they wouldn’t let

men see him and after that he just said to keep quiet.

“Q. This a rather recent fabrication of yours isn’t it not?

“A. No, it isn’t.

“Q. Well, you told Detective LeVanseler back when you

were first arrested, you stole the car back on Washtenaw and

Hill Street?

“A. Never spoke with Detective LeVanseler.

“Q. Never did?

10a People v Charles, 58 Mich App 371

“A. Right, except when Detective Hall and Price were

there and then it was on tape.”

Any reference to the defendant’s communicativeness at the

time of his arrest went to show the inconsistency between

defendant's testimony at trial that he did not speak to Detective

LeVanseler concerning the car, and his earlier statement to

the detective that he took the car from the vicinity of Hill and

Washtenaw Streets. cf. People v Graham, 386 Mich 452; 192

NW2d 255 (1971). The prosecutor’s question was by no means

an attempt to use defendant's silence as evidence of his guilt.

The question was designed to elicit information from the

defendant concerning a prior statement which was inconsistent

with his testimony at trial. People v Taylor, 44 Mich App 640;

205 NW2d 884 (1973), lv den, 389 Mich 810 (1973). Further-

more, there is no reasonable possibility that the passing [58

Mich App 383] remark of the prosecutor could have con-

tribuuted to the defendant’s conviction. People v Swan, 56

Mich App 22; 223 NW2d 346 (1975).

Ill

Defendant contends that the information filed in this case

was defective in that it did not adequately differentiate be-

tween first and second degree murder by including reference

to the elements of premeditation and deliberation, and that

because of this, the defendant’s conviction should be reversed.

The information was drafted with greater specificity than

provided for by statute. See MCLA 767.44; MSA 28.984; MCLA

767.71; MSA 28.1011. A citation to the statute defining first-

degree murder, “MSA 28.548”, is included on the face of the

information. The information was not defective. People v

Strutenski, 39 Mich App 72; 197 NW2d 296 (1972), lv den,

387 Mich 785 (1972).

People v Charles, 58 Mich App 371 lla

IV

Arguing that the prosecution failed to prove premeditation

and deliberation, defendant contends that the trial court erred

by denying his motion for a directed verdict of not guilty as

to first-degree murder. This contention cannot be accepted.

The question which is presented by a motion for a directed

verdict of not guilty is whether there is evidence from which

a jury can reasonably infer all of the elements of the crime

charged. People v Moore, 51 Mich App 48; 214 NW2d 548

(1974); People v Compton, 23 Mich App 42; 178 NW2d 133

(1970). In determining whether or not there was sufficient

evidence on each essential element of the [58 Mich App 384]

offense of first-degree murder to submit the case to the jury,

the state’s evidence must be taken as true, and it must be

viewed in the light most favorable to the state, so that the

state benefits from every reasonable inference to be drawn

therefrom. People v Watkins, 36 Mich App 380; 193 NW2d

914 (1971), affirmed 388 Mich 717; 202 NW2d 780 (1972). If

there is any evidence at all on each of the elements of first-

degree murder, the motion should be denied and the trial

should proceed to allow the jury to decide whether or not the

evidence is sufficient to establish guilt beyond a reasonable

doubt. People v Wesley Brown, 35 Mich App 153; 192 NW2d

281 (1971), lv den, 386 Mich 768 (1971). The elements of pre-

meditation and deliberation necessary to prove first-degree

murder may be inferred from the character of the weapon used,

the wound inflicted, and the circumstances surrounding the

killing. People v Lem Dumas, 25 Mich App 173; 181 NW2d 89

(1970), lv den, 384 Mich 800 (1971); People v Griner, 30 Mich

App 612; 186 NW2d 800 (1971); People v Macklin, 46 Mich

App 297; 208 NW2d 62 (1973).

The evidence produced by the prosecution in the present

case was more than adequate to permit the jury to find pre-

12a People v Charles, 58 Mich App 371

meditation and deliberation. An electrical cord was removed

from a lamp, knotted on both ends, and wrapped a number

of times around the decedent’s neck. A wooden hanger was

found near the body with indications that it had been used to

apply added pressure to the cord. The cord was deeply em-

bedded, breaking a bone in the neck and causing death by

strangulation. The house was in dissarray and evidence of

blood and hair was discovered indicating that a struggle had

begun on the second floor ending in the first floor foyer where

the severely beaten body was found. [58 Mich App 385] The

trial court did not err in denying the motion for a directed

verdict as to first-degree murder.

V

While attempting to impeach the defendant’s credibility by

examining him concerning prior convictions, the prosecutor

asked the defendant if he had been convicted of embezzlement

on April 16, 1970 in Wyoming, Michigan. Defendant denied

the conviction, although his nolice record, which subsequently

was determined to be incorrect, listed the offense along with

many others. In an attempt to clarify the conviction under

discussion, the prosecutor asked the defendant if he spent 30

days in jail as a result of it. At that time, the defendant replied

that the conviction was for petty larceny, not embezzlement.

On appeal, defendant’s appellate counsel argues that the pros-

ecutors question constituted reversible error because it was

asked in order to improperly reveal details of the prior convic-

tion to the jury.

It is apparent that when considered in the context in which

it occurred, the prosecutor's inadvertent error caused no prej-

udice to the defendant; and since no objection was made, we

find no reversible error. People v Peay, 37 Mich App 414; 195

NW2d 75 (1971), lv der, 388 Mich 795 (1972).

People v Charles, 58 Mich App 371 13a

VI

Of the many photographs taken by the police at the scene

of the murder, two were admitted into evidence over defend-

ant’s objection. On appeal, defendant maintains that they

served no purpose other than to inflame the jury, and that

the trial court committed reversible error by allowing their

admission.

[58 Mich App 386] Resolution of this issue requires applica-

tion of the balancing test formulated in People v Eddington,

387 Mich 551; 198 NW2d 297 (1972), and restated in People

v Falkner, 389 Mich 682; 209 NW2d 193 (1973). The court

must determine whether the photographs were “substantially

necessary or instructive to show material facts or conditions”,

or whether they were merely “calculated to excite passion

and prejudice.”

One of the photographs was taken from near the second

floor of the house looking down the stairwell approximately

where the decedent, according to the prosecutor’s theory, fell

to the foyer striking the banister with his head. The second

photograph was taken from a position closer to the bod). It

depicted the technique used to effectuate the strangulation,

including details of the looped and knotted lamp cord em-

bedded in the neck, and the Iccation of the wooden clothes

hanger used, again according to the prosecutor's theory, to

assist in the generation of the force necessary to cause the

extensive damage to the internal structures of the decedent's

neck. This photograph also illustrated the condition of the

decedent’s face which tended to establish that he had been

severely beaten before he was killed, possibly elsewhere in the

house, such as on the second floor where the prosecution argued

the altercation began.

Therefore, the photographs were of substantial probative

Ida People v Charles, 58 Mich App 371

value. They were material to proving premeditation and delib-

eration. People v Fullwood, 51 Mich App 476; 215 NW2d 594

(1974). While they are certainly not pleasant, there is no sugges-

tion that they were offered out of any improper prosecutorial

motive. People v Banks, 50 Mich App 622; 213 NW2d 817

(1973). The trial court carefully considered the arguments of the

parties, and [58 Mich App 387] in a thoughtful detailed ruling

extending over five pages of trial transcript, concluded that

the photographs were admissible. Our consideration of this

issue leads us to the same conclusion; “The admission of the

photographs could not be said to be an abuse of the trial

judge’s discretion”. People v Eddington, supra, 387 Mich 562.

No limiting instruction was requested. Defendant cannot now

assign as error the failure to give such an instruction restricting

the purposes for which the jury could consider the photographs.

CCR 1963, 516.2.

VII

During cross-examination of the defendant and during his

closing argument to the jury, the prosecutor made certain

comments which the defendant now argues were reversibly

erroneous as expressing a personal belief in the defendant's

guilt, and as disclosing facts not in evidence. The allegedly

prejudicial remarks are extracted from various parts of the

lengthy trial transcript, and reproduced in isolation from the

context in which they occurred. We have considered the pur-

portedly prejudicial utterances of the prosecutor as they appear

in the trial transcript, and we note the conspicuous fact that

not a single objection to any of these remarks was made at

trial. As a result, the applicable well recognized rule precludes

reversal of the defendant's conviction unless the prejudicial

effect of the prosecutorial comments was so great that it could

not have been cured by a timely objection and a cautionary

instruction. People v Giacalone, 52 Mich App 428; 217 NW2d

444 (1974); People v White, 54 Mich App 342; 220 NW2d 789

People v Charles, 58 Mich App 371 15a

(1974); People v Plozai, 50 Mich App 131; 212 NW2d 721

(1973). Our examination of these remarks leads us to conclude

that their prejudicial impact was mini [58 Mich App 388] mal.

Any potential prejudice was curable; any possible error is not

reversible.

The prosecutor's comments which were probably the most

egregious and which will serve to indicate the nature of the

remarks here urged as error occurred with reference to the

defendant's theory of the case. During his closing argument,

the prosecutor referred to the defendant’s account of how he

came into possession of the decedent’s car as a “cock-and-

bull story”, and stated “that the defendant, to put it bluntly,

he’s lying to you”.

This Court has repeatedly declined to find reversible error

where the prosecutor argued that the defendant was lying and

no objection to this language was made at trial. People v Pacely,

51 Mich App 67; 214 NW2d 561 (1974); People v Couch, 49

Mich App 69; 211 NW2d 250 (1973), lv den, 391 Mich 755

(1973); People v Cowell, 44 Mich App 623; 205 NW2d 600

(1973). While the prosecutor could have conveyed the under-

lying idea to the jury in more prosaic terms and hence avoided

any semblance of impropriety, the language that he chose to

employ did not exceed permissible limits of prosecutorial

responsibility.

Vill

One of the three persons in the park in Grand Rapids who

were present when the defendant stated that he had killed a

man and taken his car, presumably could not be located, and

was not called as a witness by the prosecution. Arguing that

this person, Gary Brown, also known at Tattoo Man, was a res

gestae witness, defendant objects for the first time on appeal to

the prosecutor’s failure to indorse and call this witness.

16a People v Charles, 58 Mich App 871

Defendant is unable to cite any authority for his [58 Mich

App 389] proposition that a person who hears a defendant

admit committing a crime becomes a res gestae witness. In any

event, the identity of the witness was well-known to the

defendant long before trial but he did not move for the indorse-

ment or production of the witness. Furthermore, the testimony

of the witness would be merely cumulative in that two other

persons in the park at that time did testify. Under these cir-

cumstances, failure to produce the witness was not reversible

error. People v Koehler, 54 Mich App 624; 221 NW2d 398

(1974).

The two remaining issues raised by the defendant are inane,

and merit no comment other than point out that the theory

of felony murder has no application to the present case.

Affirmed.

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GLENN CHARLES,

| Petitioner, Civil Action

nae No. 8-70976

CHARLES ANDERSON, Warden,

Respondent.

MAGISTRATE’S RECOMMENDATION AND REPORT

I. RECOMMENDATION.

It is recommended that the petition for habeas corpus be

denied.

Magistrate's Recommendation and Report 17a

II. REPORT.

Petitioner has heretofore been permitted to file in forma

pauperis a petition for a writ of habeas corpus attacking a

state court conviction under which he is being held as an

inmate at Jackson prison.

Petitioner has been represented by counsel from the incep-

tion of these proceedings. His petition sets forth an allega-

tion that there was a violation of his federal constitutional

rights in connection with comment on post-arrest silence,

citing Doyle v. Ohio, 426 U.S. 610 (1976), that there was

prosecutorial misconduct in connection with an assertion by

- the prosecutor in his personal belief of guilt coupled with

the prosecutor's informing the jury that the State had other

evidence of petitioner's guilt, and lastly that there was an

absence of evidence from which an inference of premedita-

tion or deliberation could be drawn which should require

that petitioner's conviction of first-degree murder be reduced

to second-degree murder.

A response has been filed by the Attorney General and the

transcripts of the trial proceedings lodged with this Court.

Oral arguments on this case were heard by the undersigned

on September 11, 1978.

As noted by counsel for both sides, the Michigan Court of

Appeals in an extensive opinion reviewed the facts in peti-

tioner’s case and the allegations of error raised on appeal and

in a comprehensive opinion affirmed the conviction (See

People v. Charles, 58 Mich. App. 371 (1975) ). In the opinion

of the Court of Appeals, and in both briefs of counsel, there

are extensive summarizations of the trial testimony in this

case and except as necessary the facts of the case will not be

repeated in this report.

18a Magistrate's Recommendation and Report

A. The Doyle Issue

Counsel for petitioner argues that the prosecutor improperly

cross-examined petitioner with regard to his post-arrest silence

in this case. As noted in petitioner's brief, the prosecution’s

case for proving petitioner guilty of first-degree murder was

based on circumstantial evidence centered around the ad-

mitted fact that petitioner was found in possession of the

victim's car and personal effects and that petitioner had been

in Ann Arbor at the time of the homicide (Petitioner’s brief,

page 1). As also noted in petitioner’s brief, he himself had

testified that he had gained possession of the decedent’s car

and found decedent’s possessions in the car when he stole it

from the bus station in Ann Arbor.

During the prosecution’s case, a detective had testified that

petitioner had told him shortly after his arrest that he had

taken the car from the vicinity of Washtenaw and Hill Streets

in Ann Arbor. The prosecutor cross-examined petitioner on

the apparent inconsistency with respect to the location of the

car that had been stolen. The cross-examination of petitioner

relied upon to prove a violation of the Doyle standard is set

forth in petitioner's brief at pages 2 and 3.

However, as noted in the Attorney General’s brief, peti-

tioner had made a statement to the detective after being read

the full Miranda rights (Respondent's brief, pages 9-10) and

the location of the car at the time it was taken by petitioner

was an important circumstantial fact in the case.

As correctly set forth in the Attorney General’s brief, the

‘estimony of petitioner may fairly be summarized as follows:

“Petitioner's attorney began his direct examination by

eliciting from the Petitioner a litany of Petitioner's past

crin. ual convictions ranging from petty larceny to carry-

Magistrate's Recommendation and Report 19a

ing a concealed weapon for which he was serving his

sentence at the State Prison at Jackson, Michigan, when

he escaped on July 22, 1971.

“The Petitioner testified that he had left the state prison

farm at Jackson, where he was a trusty, on the morning

of July 22, 1971, in order to go to Virginia to stop his

wife from getting full custody of his son. (Trial pp 251-

252) He hitchhiked a ride to Ann Arbor where he arrived

about noon. (Trial p 253) Most of the time on Thursday

and Friday afternoons he spent walking around the street

festival in Ann Arbor. (Trial pp 253-254) He claimed

that he stole the white Buick when he saw it at about

10:30 Saturday evening parked at Kelly’s Tire Company

adjoining the bus station in Ann Arbor with the door

unlocked and the keys in the ignition. (Trial p 259) He

testified that he took the Buick and headed for the express-

way. (Trial p 259)

“Between Jackson and Kalamazoo he pulled into a bow!-

ing alley looking for something to eat. When he found it

was closed he headed back toward the freeway. On the

way he dumped from the car a bunch of magazines, some

keys and other items. (Trial p 260) He then went to

Grand Rapids by way of Kalamazoo where he stopped

at a hotel on South Division Street. He claimed to have

found a suitcase which contained, among other things, a

box with approximately $100.00 in quarters and $15.00 or

$16.00 in fifty cent pieces when he opened the trunk of

the car to find a rag to wipe off his fingerprints. He said

that he wiped the car down and checked into the hotel,

at about 2:00 Sunday morning paying for the room with

some of that money. (Trial p 261)

“He testified that when he went to the Veterans Park

about 8:00 Sunday evening, he saw an old friend of his,

20a Magistrate's Recommendation and Report

Tatoo Man, sitting on one of the benches with Ethel

Skinner and Barbara Brott. (Trial p 262) He told them

the car he was driving was hot. (Trial p 263) He denied

having said the owner of the car was dead. (Trial p 277)

He denied having said he had murdered a man in Ann

Arbor. (Trial p 273)

“The Petitioner admitted that he could see Kelly's Tire

Company from the window of the Washtenaw County

Jail (Trial p 302-303) Petitioner admitted that he tried

to wipe the fingerprints off the car because he intended

to abandon the car since the police might be able to place

him in the car through fingerprints. (Trial pp 321-322)

The petitioner wiped the steering wheel, the mirror, the

gearshift and the door handles of the car. (Trial p 349)

Petitioner admitted that he was in Ann Arbor practically

penniless on Saturday evening, July 24, 1971. (Trial pp

362-363 )”

The treatment of this issue by the Michigan Court of Ap-

peals, particularly that portion of the opinion set forth at

respondent's brief pages 14-15, is, I suggest, an appropriate

conclusion by the Court and clearly establishes that no viola-

tion of the Doyle standard occurred. As noted by the Court

of Appeals, “Consideration of a slightly greater portion of the

transcript of the prosecutor's cross-examination of the de-

fendant discloses that the prosecutor was not referring to the

defendant's exercise of his right to remain silent; rather he

was asking the defendant why, if that version were true, he

didn't tell the officer that he stole the decedent’s car from the

tire store parking lot instead of telling him that he took it from

the street.” (58 Mich App at 381 )

As further noted by the Michigan Court of Appeals, “Any

reference to the defendant’s communicativeness at the time

of his arrest went to show the inconsistency between de-

Magistrate's Recommendation and Report 21a

fendant’s testimony at trial that he did not speak to Detective

LeVanseler concerning the car, and his earlier statement to

the detective that he took the car from the vicinity of Hill

and Washtenaw Streets.” (58 Mich App at 382)

The Michigan Court of Appeals concluded that the prosecu-

ters question was by no means an attempt to use defendant’s

silence as evidence of his guilt but that the question was

designed to elicit information from the defendant concerning

a prior statement which was inconsistent with testimony at

trial and that there was no reasonable possibility that the

passing remark of the prosecvtor could have contributed to

the defendant’s conviction (58 Mich App at 382). In this

context, the statement in the Attorney General’s brief is also

appropriate:

“Seen against the factual panorama of the case, the

prosecution's questioning was quite proper. The prosecu-

tion’s evidence implicating the Petitioner went beyond

his possession of the victim’s car and personal effects in

Grand Rapids and the fact that Petitioner had been in

Ann Arbor at the time of the killing. Between 7:30 and

8:00 p.m. on the evening of Saturday, July 24, 1971, the

deceased was last seen alive arriving at and entering his

home with a white male wearing a black T-shirt. (Trial

pp 221-223) The victime was killed during the succeed-

ing few hours before delivery of the Ann Arbor News

on the morning of Sunday, July 25, 1971, since that issue

of the paper was found on the porch. (Trial pp 60-61,

214, 227-229, 240) On the evening of July 25, 1971

Petitioner was seen at a park in Grand Rapids wearing

a black T-shirt. (Trial pp 175-177, 181). The Petitioner

told a young woman who was with an old friend of his

known as “Tattoo Man” that he had escaped from Jackson

and hitchhiked a ride with a faggot whom he murdered

22a Magistrate's Recommendation and Report

and whose car he took. (Trial pp 178, 262)” (Respond-

ent’s brief, pages 15-16).

[ suggest therefore that there has been no violation of the

Doyle standard shown to this Court and that the Court should

adhere to the ruling it made on a similar issue in the case of

Dates v. Koehler, Civil Action No. 7-71751.

B. Prosecutorial Misconduct Issue

Petitioner sets forth four separate assertions in support of

his argument that the prosecuter in the case at bar was guilty

of misconduct of a constitutional dimension. Petitioner accuses

the prosecutor of repeatedly expressing a personal belief in

guilt and of making statements about facts that were not

introduced into evidence (Petitioner's brief, pages 10-14). In

this aspect of the case, petitioner focuses upon the closing

argument of counsel and has set forth the appropriate excerpts

from that argument upon which he relies. Counsel also sets

forth and relies upon a question put to petitioner by the

prosecuting attorney during the course of cross-examination

which counsel for petitioner argues was not later supported

by any evidence (Petitioner’s brief, page 13). Petitioner also

criticizes another portion of cross-examination in which the

prosecuting’ attorney appeared to make a factual statement

in the course of asking a question and asserts that these

factual assertions were never later proved by evidence (Peti-

tioner’s brief, page 14). Lastly, petitioner again returns to

the prosecuter’s final argument and sets forth a portion of a

sentence which, he argues, implied to the jury that there was

other damaging evidence against petitioner which had not

been disclosed to the trial jury (Petitioner’s brief, page 15).

I suggest that the several items brought forth by petitioner,

when examined against the facts of the case, make it clear

that there was no prosecutorial misconduct, at least of the

Magistrate's Recommendation and Report 23a

gross kind that calls for reversal of criminal conviction under

the standard of Donnelly v. Dechistoforo, 416 U.S. 637

(1974). As noted in the Attorney General’s brief, the portions

of the prosecutor's final argument set forth on pages 11 and

12 of petitioner's brief are legitimate final argument.

The prosecutor, in acting as an advocate for the People of

the State of Michigan, was entitled to state to the jury his

view as to what the trial evidence appeared to show and to

suggest a plausible summary that would tie in the various

facets of the circumstantial evidence placed before the jury.

The prosecutor's comments with regard to the reactions or

lack of reactions of the defendant during the course of his

testimony are also appropriate in final argument. The jury

had seen the defendant and had heard the defendant testify

and could draw its own conclusions with regard to the cor-

rectness or incorrectness of the prosecutor's assertions about

the reactions of the defendant as a witness.

The credibility of the defendant as a witness was an im-

portant issue and the prosecutor was entitled to state his case

to the jury as to why the defendant should not be believed.

The quotations set forth by counsel for petitioner amount to

no more than permissible arguments on that score.

So too, the question asked of petitioner by the prosecutor

“You had your clothes off, sir, isn’t that right?” set forth on

page 13 of petitioner’s brief, does not appear to be an incident

calling for reversal on federal constitutional grounds of peti-

tioner’s conviction. A review of the case indicates that the

prosecutor had developed a plausible theory regarding the

manner in which the crime occurred and that this theory

was that petitioner and the deceased had become acquainted

because of the deceased’s homosexual tendencies. In this con-

text it was therefore appropriate to question petitioner regard-

ing this possibility.

24a Magistrate's Recommendation and Report

The particular question complained of was, of course, a

rather dramatic manner in which to cross-examine. But in

light of petitioner's denial of any contact with the deceased

and in light of other evidence in the case indicating that peti-

tioner had admitted to a friend that he had killed a faggot, |

suggest that the prosecutor was not going beyond the bounds

of proper cross-examination in asking the particular question

complained of.

With regard to the questions set froth on page 14 of peti-

tioner’s brief in which the prosecutor asked petitioner whether

it would surprise him to know that the Probation Department

was on the sixth floor of City Hall, and whether it would

surprise him to know that there are no female probation

officers or employees over at City Hall, while it would no

doubt have been appropriate for counsel to later prove by

independent evidence the fact of his assertion, I suggest that

these questions should not lead to a conclusion that peti-

tioner’s constitutional rights in the conduct of the state court

trial were violated.

Since the factual assertions contained in the questions do

not directly relate to issues of guilt or innocence, I suggest that

the Michigan court could appropriately consider that any

error committed had been harmless and should not lead to

reversal. I suggest further that this assessment of the issue by

the Michigan appellate court should not be second-guessed

by this court, which is to consider only trial errors rising to a

constitutional level.

Petitioner also asserts that the prosecutor's question on cross-

examination regarding the nature of a particular offense which

apparently had not been mentioned under direct examination

when petitioner admitted to a number of offenses in his past

record, should similarly not lead this Court to conclude that

petitioner's rights were violated.

Magistrate's Recommendation and Report 25a

In view of the extensive admissions of prior convictions dis-

closed by petitioner himself on direct examination by trial

counsel, the incident complained of appears to be de minimis.

So too, petitioner's complaint that it was not necessary for

the trial jury to have before it two photographs of the deceased

which are characterized as gruesome, should not lead this

Court to grant habeas relief. This kind of question is con-

cededly a matter of discretion for a trial judge to exercise.

Since the evidence is admittedly relevant to tho issues to be

tried, even were this Court to disagree with the decision of

the trial judge in admitting the photographs as exhibits, this

disagreement would be over a matter of discretion and, |

suggest, not a matter involving constitutional rights. I suggest

that this is particularly the case since petitioner also argues to

this Court as he did to the Michigan court that there was in-

sufficient evidence ‘o prove first-degree murder and that a

conviction for that charge should be reduced to second-degree

murder. I submit that the photographs might properly be

some evidence regarding the nature of the homicide and

might therefore appropriately be relevant on the issue raised

by petitioner regarding the proofs showing of failing to show

a sufficient basis from which a jury could conclude that peti-

tioner was guilty of first-degree murder.

As noted, petitioner's last issue is an attack on the sufficiency

of the evidence to prove first-degree murder as distinct from

second-degree murder. I suggest that the cases cited by the

Attorney General at page 25 of his brief are appropriate au-

thority upon which this Court may deny the petition with

respect to this issue. In addition, the factual argument set

forth in respondent's brief at pages 25 through 27 appropriately

shows that there was a basis from which the jury could con-

clude that the additional element needed to raise the charge

of murder to first-degree murder had been proven.

26a Magistrate's Recommendation and Report

As set forth in the Attorney General's brief, there was

testimony from witnesses regarding petitioner's conversations

with persons after the fact regarding how long it took to

strangle a person ( Respondent's brief, page 27).

I suggest that petitioner has not shown that he is entitled

to relief on this or any other issue presented. Accordingly, as

noted at the outset, | recommend that the petition for writ of

habeas corpus be denied.

Respectfully submitted,

Paul J. Komives /s/

United States Magistrate

Dated: Nov. 16, 1978

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GLENN CHARLES,

Petitioner,

VS. CIVIL NO. 8-70976

CHARLES ANDERSON, Warden,

Respondent.

JUDGMENT

The Court having entered an Order of Dismissal on this

date based upon its review of the file and upon the report and

recommendations of the Magistrate in accordance with 28

U.S.C. 636(b)(1)(C) and having ordered that Judgment enter

for Respondent;

District Court Judgment and Order 27a

IT IS ADJUDGED that Petitioner be granted no relief and

that the action be dismissed in accordance with the order

entered this date.

DATED: Dec. 28, 1978

[s/ James P. Churchill]

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GLENN CHARLES,

Petitioner,

VS. CIVIL NO. 8-70976

CHARLES ANDERSON, Warden,

Respondent.

ORDER OF DISMISSAL

The Court has reviewed the file and the Magistrate’s Report

and Recommendation in accordance with 28 U.S.C. 636(b)(1)(C).

The Report and Recommendation of the Magistrate is hereby

accepted and entered as the Findings and Conclusions of the

Court.

IT IS ORDERED that petition for a writ of habeas corpus

is hereby DENIED.

LET JUDGMENT ENTER ACCORDINGLY.

28a District Court Judgment and Order

IT IS FURTHER ORDERED that the Clerk serve a copy

of this Order by United States mail on counsel for Petitioner

and on counsel for Respondent.

DATED: Dec. 28, 1978.

[s/ James P. Churchill]

United States District Judge

[610 F2d 417]

Glenn CHARLES, Petitioner-Appellant,

v.

Charles ANDERSON, Warden,

Respondent-Appellee.

No. 79-1158.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 8, 1979.

Decided Dec. 4, 1979.

As Amended Dec. 14, 1979.

Rehearing Denied Jan. 22, 1980.

F. Martin Tieber, Deputy State Appellate Defender, Lan-

sing, Mich., for petitioner-appellant.

Frank J. Kelley, Atty. Gen. of Michigan, Robert A. Deren-

goski, Sol. Gen., Thomas L. Casey, Stephen F. Schuesler, Asst.

Attys. Gen., Lansing, Mich., for respondent appellee.

Before EDWARDS, Chief Judge, MERRITT, Circuit Judge,

and PHILLIPS, Senior Circuit Judge.

Charles v Anderson 610 F2d 417 29a

PHILLIPS, Senior Circuit Judge.

The appeal in this habeas corpus case presents the question

whether a murder defendant who, shortly after his arrest and

after receiving Miranda warnings, offered an exculpatory story

that is inconsistent with the story he told at trial, he may be

cross-examined about his post-arrest failure to assert his trial

version of the story. On the authority of Doyle v. Ohio, 426

U.S. 610, 96 S. Ct. 2240, 49 L.Ed.2d 91 (1976), we hold that

he may not.

I

Petitioner-appellant Glenn Charles was found guilty on

October 9, 1972, of the first degree murder of Theodore Ziefle

by strangling him with an electrical cord. The Circuit Court

of Washtenaw County, Michigan, sentenced Charles to man-

datory life imprisonment following a jury verdict of guilty.

There were no witnesses to the crime. The only evidence link-

ing Charles to the murder [610 F2d 419] was his possession

of Ziefle’s car and certain personal possessions; the fact that

Charles owned a black T-shirt similar to that worn by a man

in whose company Ziefle was last seen alive; and Charles’

alleged statements to witnesses in Grand Rapids, Michigan,

that he had murdered a man in Ann Arbor, that it would take

about three minutes to strangle a person, and that his hands

were deadly weapons.

The State’s theory of the case was that Charles, an escaped

trusty of the State prison farm in Jackson, Michigan, was

hitchhiking when Ziefle gave him a ride, that Ziefle brought

Charles to his home for the purpose of engaging in homosexual

actvivty and that Charles murdered Ziefle to obtain his car and

valuables.

Charles testified that he found the car parked behind Kelly’s

30a Charles v Anderson 610 F2d 417

Tire Company in Ann Arbor with the keys in the ignition

and stole it to evade prison authorities. He said that he found

the valuables, some silver coins, and an old camera, in the

trunk of the car when he was looking for a rag with which to

wipe off his fingerprints. He admitted driving to Grand Rapids

and telling witnesses there that the car was stolen but denied

telling them he had killed its owner,

On his cross-examination, the following colloquy occurred;

Q. Now, this Kelly’s Tire Company, that’s right next

to the bus station, isn’t it?

A. That’s correct.

Q. And, the bus station and Kelly's Tire are right next

to the Washtenaw County Jail are they not?

A. They are.

Q. And, when you're standing in the Washtenaw Coun-

ty Jail looking out the window you can look right out and

see the bus station and Kelly’s Tire, can you not?

A. That’s correct.

Q. So, you've had plenty of opportunity from—well,

first you spent some time in the Washtenaw County

Jail, haven’t you? ~~

A. Quite a bit.

Q. And, you have had plenty of opportunity to look

out that window and see the bus station and Kelly’s tire?

A. That's right.

Q. And, you've seen cars being parked there, isn’t

that right?

—

Charles v Anderson 610 F2d 417 3la

A. That’s correct.

Q. Is this where you got the idea to come up with the

story that you took a car from that location?

A. No, the reason I came up with that is because it’s

the truth.

Q. It’s the truth?

A. That's right.

Q. Don’t you think it’s rather odd that if it were the

truth that you didn’t come forward and tell anybody at

the time you were arrested, where you got that car?

A. No, I don’t.

Q. You don’t think that’s odd?

A. I wasn’t charged with auto theft, I was charged

with murder.

Q. Didn't you think at the time you were arrested

that possibly the car would have something to do with

the charge of murder?

A. When I tried to talk to my attorney they wouldn’t

let me see him and after that he just said to keep quiet.

Q. This is a rather recent fabrication of yours isn’t

it not? [sic]

A. No, it isn’t.

Q. Well, you told Detective LeVanseler back when

you were first arrested, you stole the car back on Wash-

tenaw and Hill Street?

A. Never spoke with Detective LeVanseler.

32a Charles v Anderson 610 F2d 417

Q. Never did?

A. Right, except when Detective Hall and Price were

there and then it was on tape.

Charles appealed his conviction to the Michigan Court of

Appeals. He argued that the prosecutor committed reversible

constitutional error by using Charles’ post-arrest silence to

impeach the exculpatory story he told at trial. The court ac-

cepted the State’s argument that the prosecutor’s questions

merely pointed out Charles’ prior [610 F2d 419] inconsistent

statement and did not use his post-arrest silence for impeach-

ment purposes. Accordingly, it affirmed Charles’ conviction.

People v. Charles, 58 Mich.App. 371, 227 N.W.2d 348 (1975).

The Michigan Supreme Court denied leave to appeal.

Charles then petitioned the district court for a writ of habeas

corpus, raising the same issues the Michigan courts had re-

jected. The district court dismissed the petition on December

28, 1978, and this appeal followed.

II

Charles argues that the prosecutor's cross-examination

amounted to an inquiry into his post-arrest silence. Although

Charles’ trial counsel apparently did not object to the pros-

ecutor's cross-examination, the State does not argue that the

error was not preserved for appeal. Both the Michigan Court

of Appeals and the district court seem to have assumed that

the issue could be raised for the first time on appeal. This was

clearly correct in the present situation. Michigan appellate

courts have held repeatedly that the failure to object at trial

does not foreclose them from considering alleged constitutional

violations. See People v. Cotton, 38 Mich.App. 763, 197 N.W.2d

90 (1972); People v. Schumacher, 29 Mich.App 594, 185

N.W.2d 633 (1971); People v. Limon, 4 Mich.App. 440, 145

N.W.2d 287 (1966). Furthermore, this court has found constitu-

Charles v Anderson 610 F2d 417 33a

tional error in impeachment by post-arrest silence even though

the defendant did not object at trial. See Rachel v. Borden-

Kircher, 590 F.2d 200, 203 (6th Cir. 1978); Minor v. Black.

527 F.2d 1, 4-5 (6th Cir. 1975), cert denied, 427 U.S. 904, 96

S.Ct. 3189, 49 L.Ed.2d 1198 (1976). Thus, the constitutional

issue is properly before us.

This case, Charles says, is controlled by Doyle v. Ohio, 426

U.S. 610, 619 96 S.Ct 2240, 2245, 49 L.Ed.2d 9] (1976), where

the Supreme Court held “that the use for impeachment pur-

poses of petitioners’ silence, at the time of arrest and after

receiving Miranda warnings, violated the Due Process Clause

of the Fourteenth Amendment.”

In Doyle, two criminal defendants testified at their trial to

an exculpatory story they had not previously offered. Over

their counsel’s objection, the prosecutor cross-examined them

about why, if the exculpatory story were true, they had not

offered it to the arresting officers after receiving Miranda

warnings. The Supreme Court held that this use of their post-

arrest silence violated due process:

Despite the importance of cross-examination, we have

concluded that the Miranda decision compels rejection of

the State’s position. The warnings mandated by [the

Miranda decision], as a prophylactic means of safeguard-

ing Fifth Amendment rights, see Michigan v. Tucker, 417

U.S. 433, 443-444, [94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d

182] (1974), require that a person taken into custody be

advised immediately that he has the right to remain silent,

that anything he says may be used against him, and that

he has a right to retained or appointed counsel before

submitting to interrogation. Silence in the wake of these

warnings may be nothing more that the arrestee’s exer-

cise of these Miranda rights. Thus, every post-arrest silence

is insolubly ambiguous because of what the State is re-

34a Charles v Anderson 610 F2d 417

quired to advise the person arrested. See Uniied States

v. Hale, supra, [422 U.S. 171] at 177 [95 S.Ct. 2133, 45

L.Ed.2d 99] Moreover, while it is true that the Miranda

warnings contain no express assurance that silence will

carry no penalty, such assurance is implicit to any person

who receives the warnings. In such circumstances, it

would be fundamentally unfair and a deprivation of due

process to allow the arrested person’s silence to be used

to impeach an explanation subsequently offered at trial.

(Footnotes omitted.) 426 U.S. at 617-18, 96 S.Ct. at 2244,

2245.

The Attorney General of Michigan argues that Doyle does

not control this case because the prosecutor’s question “merely

went to show the inconsistency between Petitioner’s testimony

that he stole the car [610 F2d 420] from the tire store and his

earlier statement to the detective that he took the car from the

vicinity of Hill and Washtenaw Streets.” Unlike the Doyle

petitioners, the State argues, Charles did not remain silent after

receiving the Miranda warnings, but rather offered an excul-

patory explanation which differed from that he gave at trial.

The prosecutor's questions, the State says, were merely a

legitimate attempt to explore this inconsistency.(]

The question we must address is whether a defendant who

has made a post-arrest statement inconsistent with his exculpa-

tory trial testimony may be cross-examined not only about his

prior inconsistent statement but also about his post-arrest

failure to tell the arresting offices the exculpatory story he told

at his trial. For the reasons hereinafter set forth, we hold that

he may not, and, accordingly, reverse.

11)

Although Charles claims that he never made the inconsistent post-

arrest statement, the jury’s guilty verdict requires us to accept as

fact that he did.

Charles v Anderson 610 F2d 417 35a

Ill

We begin with the proposition that Doyle does not prohibit

every impeachment use of a defendant’s post-arrest silence,

but only those which are fundamentally unfair. For example,

the Doyle court recognized:

[T]he fact of post-arrest silence could be used by the

prosecution to contradict a defendant who testifies to an

exculpatory version of events and claims to have told the

police the same version upon arrest. In that situation the

fact of earlier silence would not be used to impeach the

exculpatory story, but rather to challenge the defendant’s

testimony as to his behavior following arrest. (Citations

omitted.) 426 U.S. at 619-20, n. 11, 96 S.Ct. at 2245, n. 11.

See United States v. Conlin, 551 F.2d 534 (2d Cir.), cert.

denied, 434 U.S. 831, 98 S.Ct. 114, 54 L.Ed.2d 91 (1977). Other

circuits have held that the prosecutor can c 9ss-examine the

defendant about his post-arrest silence in order to rebut the

inference his testimony has created that he cooperated with the

police. See United States v. Vega, 589 F.2d 1147 (2d Cir. 1978);

Stone v. Estelle, 556 F.2d 1242 (5th Cir. 1977), cert. denied, 434

U.S. 1019, 98 S.Ct. 742, 54 L.Ed.2d 767 (1978); United States

v. Fairchild, 505 F.2d 1378 (5th Cir. 1975).

On the other hand, Doyle teaches that the defendant’s silence

after he has received Miranda warnings may not be used to

impeach his exculpatory trial testimony. Because the defend-

ant’s silence “may be nothing more than the arrestee’s exercise

of these Miranda rights,” Doyle v. Ohio 426 U.S. 610, 617, 96

S.Ct. 2240, 2244 49 L.Ed.2d 96 (1976), it is not necessarily in-

consistent with his exculpatory testimony. Rather, the defend-

ant’s post-arrest silence is “insolubly ambiguous” and its use

to impeach exculpatory trial testimony denies due process, 426

US. at 617, 96 S.Ct. 2240.

36a Charles v Anderson 610 F2d 417

By contrast, there is nothing ambiguous about the defend-

ant’s silence when it is offered to rebut the inference that he

cooperated with the arresting officers or told them the same

story he told the jury at trial. In that situation, the fact of his

silence, and not the reasons for it, is important. Consequently,

using the fact that he remained silent is constitutionally per-

missible under those circumstances.

Moreover, permissible cross-examination about post-arrest

silence serves a different purpose from that of impermissible

cross-examination. “Where the defendant has raised an in-

ference that he told arresting officers the same story he told

the jury, the prosecutor’s cross-examination about the defend-

ant’s post-arrest silence is designed to impeach the defendant's

credibility, not the exculpatory story itself. By pointing out the

inconsistency, the prosecutor seeks to show the jury that the

defendant lied when he testified that he had told the same

exculpatory story to arresting officers. In that situation the fact

of post-arrest silence is not offered to impeach the substance of

the exculpatory story, but only to impeach the credibility of

the defendant.

In the Doyle situation, however, the defendant's post-arrest

silence is offered to [610 F2d 421] impeach the substance of

his exculpatory trial testimony. The inference the prosecutor

wishes the jury to draw is that, if the exculpatory story were

true, the defendant would have offered it to police im-

mediately after being arrested; since he did not, the story must

be false. As the Court recognized in Doyle, recent fabrication

is only one of several possible explanations for the defendant's

post-arrest silence. Since it is the meaning of the silence that

is important and since that meaning is ambiguous, due process

prohibits the use of post-arrest silence to impeach exculpatory

trial testimony. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct.

2240, 49 L.Ed.2d 91 (1976).

Charles v Anderson 610 F2d 417 37a

[1] Applying this distinction to the present case, we hold

that the prosecutor’s cross-examination violated due process.

The prosecutor's questions dealt with two separate issues and

raised two separate inferences, one permissible and the other

impermissible.

The latter portion of the above quoted cross-examination

concerned Charles’ prior inconsistent statement that he had

stolen Ziefle’s car from the vicinity of Washtenaw and Hill

streets in Ann Arbor, Michigan. This statement was important

because of the fact that Charles had made it. It showed that

he had lied, either to the arresting officers or to the jury, and

that fact made his trial testimony less worthy of belief. In

short, the prior inconsistent statement bore on Charles’ cred-

ibility, not the truth of his exculpatory story. As such, cross-

examination about jt was permissible.

However, the earlier portion of the exchange concerned

Charles’ failure to tell arresting officers the same story he told

the jury. The prosecutor sought to use that failure to impeach

Charles’ exculpatory trial testimony directly by raising the im-

permissible inference that if the story had been true, Charles

would have offered it at the time he was arrested.

Q. Don’t you think it’s rather odd that if it were the

truth that you didn’t come forward and tell anybody at

the time you were arrested, where you got that car?

A. No, I don’t.

Q. You don’t think that’s odd?

A. I wasn’t charged with auto theft, I was charged

with murder.

Q. Didn't you think at the time you were arrested

that possibly the car would have something to do with

the charge of murder?

38a Charles v Anderson 610 F2d 417

A. When I tried to talk to my attorney they wouldn't

let me see him and after that he just said to keep quiet.

Q. This is a rather recent fabrication of yours isn’t it

not? [sic]

Here, as in the Doyle situation, recent fabrication is only

one possible explanation as to why Charles did not tell the

arresting officers the story he told the jury. It is not im-

possible, for example, that Charles lied to Detective LaVanseler

when first questioned, then realized that he was in enough

trouble already and had better remain silent until he consulted

an attorney. The Supreme Court made clear in Miranda v.

Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed2d 694

(1966), that a criminal defendant may assert his self-incrimina-

tion privilege at any point during an interrogation.

In any event, Charles’ post-arrest failure to tell the same

story he told at trial is not necessarily inconsistent with his ex-

culpatory trial testimony. Rather, it is “insolubly ambiguous”

(426 U.S. at 617, 96 S.Ct. 2240), and we hold that its use as

a vehicle for impeachment violated due process.

The State relies upon three decisions from the Fifth, Eighth

and Tenth Circuits which, it says, hold that the Doyle rule

does not apply where the defendant makes a post-arrest state-

ment inconsistent with his exculpatory trial testimony. How-

ever, in United States v. Mireles, 570 F.2d 1287, 1293 (5th

Cir. 1978), the questions asked by the prosecutor were merely

an effort to impeach by prior inconsistent statements, and “de-

fendant’s silence was in no way at issue.” In Twyman v.

Oklahoma, 560 F.2d 422, 424 (10th Cir. 1977), cert. denied,

434 U.S. 1071, 98 S.Ct. 1254, 55 L.Ed.2d 774 (1978), the de-

fendant, after receiving the Miranda warnings, gave an FBI

agent a [610 F2d 422] detailed account of his recent activities,

including his association with the murder victim; this permitted

Charles v Anderson 610 F2d 417 39a

the prosecution to question a crucial omission. In United

States v. Mitchell, 558 F.2d 1332, 1335 (8th Cir. 1977), the de-

fendant signed a written waiver of his Miranda rights, told

police an exculpatory story and failed to elaborate when the

police were unable to verify it. The opinions in those cases

did not address the distinction between using post-arrest

silence to impeach a defendant’s credibility and using it to

impeach the substance of his exculpatory story. They do not

stand for the proposition that Doyle is inapplicable simply

because a defendant has made an inconsistent statement.

We recognize that, in particular cases, the line of demarca-

tion between permissible and impermissible cross-examination

may be difficult to discern. As Judge Merritt’s dissent aptly

observed: “In the heat of cross-examination . . ., questions

and answers are often unclear.” Out of an abundance of

precaution, the only safe procedure for the prosecution to

follow in a potential Doyle situation is simply not to question

a defendant about his post-arrest silence.

IV

[2] Our holding that the prosecutor’s questions about

Charles’ post-arrest failure to tell officers the same story he

told the jury violated due process is not the end of our inquiry.

In Doyle, the Supreme Court left open the possibility that

such a constitutional error can be harmless beyond a reason-

able doubt. See Doyle v .Ohio; 426 U.S. 610, 619-20, 96 S.Ct.

2240, 49 L.Ed.2d 91 (1976); Chapman v. California, 386 U.S.

18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1976). This and other

courts have held that Doyle violations may be harmless and

not require reversal. See Hayton v. Egeler, 555 F.2d 599 (6th

Cir.), cert. denied, 434 U.S. 973, 98 S.Ct. 527, 54 L.Ed.2d 463

(1977); Meeks v. Havener, 545 F.2d 9 (6th Cir. 1976), cert

denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977):

Bradford v. Stone, 594 F.2d 1294 (9th Cir. 1979); Chapman v.

40a Charles v Anderson 610 F2d 417

United States, 547 F.2d 1240 (5th Cir.), cert. denied, 431 US.

908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977). Consequently, we

must determine whether the error in Charles’ case was harm-

less.

In Minor v. Black, 527 F.2d 1 (6th Cir. 1975), cert. denied,

427 U.S. 904, 96 S.Ct. 3189, 49 L.Ed.2d 1198 (1976), a case

which anticipated the Supreme Court’s holding in Doyle,

this court enunciated the standard for determining whether

the prosecutor's error in using the defendant’s post-arrest

silence to impeach his exculpatory trial testimony is harmless.

[T]o find harmlessness beyond a reasonable doubt we

would have to conclude that, absent the cross-examination

and closing argument, “no juror could have entertained a

reasonable doubt” as to petitioner’s guilt. 527 F.2d at 5.

In a related context, this court recently noted:

Harmless error, in the context of a violation of a con-

stitutional right of a defendant, is an extremely narrow

standard, permitting the State to avoid the retrial of a

defendant only when it can demonstrate beyond a rea-

sonable doubt that the error did not contribute in any

way to the conviction of the defendant.

7 oO 2 oO * oe

|H ]arm is presumed to have flowed from constitutional

error; the burden is on the State to demonstrate con-

clusively to the contrary. It is not enough for the review-

ing court to feel that the evidence is strong and that the

defendant probably would have been convicted anyway.

That is a decision for the jury to make, unaffected by im-

proper argument or impermissible inferences urged by the

prosecutor. Eberhardt v. Bordenkircher, 605 F.2d 275,

at 278-279 (6th Cir. 1979).

Charles v Anderson 610 F2d 417 4la

Applying this standard to the present case, we cannot find

that the prosecutor’s error was harmless. The State’s evidence

was entirely circumstantial and not overwhelming. The case

against Charles consisted of his possession of Ziefle’s car and

valuables, his alleged statements to witnesses in Grand Rapids

that he had killed a man [610 F2d 423] in Ann Arbor and the

fact that he owned a black T-shirt similar to one Ziefle’s last

known companion was seen wearing. However, the Grand

Rapids witnesses were arrested initially with Charles and

were held overnight in connection with the murder; their tes-

timony was self-serving and hardly above suspicion. Nor was

Charles’ black T-shirt particularly strong evidence of his guilt.

Finally, Charles trial testimony, if believed, explained his

possession of Ziefle’s car and valuables, which we view as the

strongest evidence linking him to the murder.

Although this evidence might well have been enough to

convict Charles, even absent the prosecutor’s improper ques-

tioning, we hold that the State has not carried its heavy

burden of showing that, disregarding the cross-examination, no

juror could have entertained a reasonable doubt as to Charles’

guilt. Under these circumstances, we cannot find harmless

error.

Accordingly, the judgment is reversed and the case re-

manded to the district court with directions to issue a writ

of habeas corpus unless Charles is tried again in the State

court within a reasonable time.

Reversed and remanded.

MERRITT, Circuit Judge, dissenting.

I agree with the Court that the essential question is whether

the record in this state court murder case creates a serious risk

that the defendant was jailed for silence in violation of the

42a Charles v Anderson 610 F2d 417

fifth amendment. But in its admirable effort to ensure fair-

ness, the Court has found a risk where, in my judgment, no

significant risk exists. I read differently the meaning and

effect on the jury of the prosecutor's questions to the de-

fendant on cross-examination.

The murder victim's stolen car in defendant’s possession at

the time of his arrest was a key piece of evidence linking the

defendant with the murder. Taken in context, the state

prosecutors question to the defendant—isn’t it “odd that you”

did not “come forward [with your present story about the loca-

tion of the car] at the time you were arrested”—does not

overstep permissible fifth amendment bounds. Defense

counsel did not object to the question at the time. From a

reading of the transcript of the trial, it is clear to me that the

prosecutory was asking about the conflict between the de-

fendant’s story at trial (that he stole the car at the bus station )

and his story to the police detective shortly after his arrest

(that he stole it at another location). Assuming that the detec-

tive truthfully recited the defendant's story at the time of

arrest, as we must in view of the jury's verdict, the conflict

indicated the defendant was lying.

Just before the trial recessed for lunch, the police detective

was examined and cross-examined closely about the story about

the car the defendant had told after his arrest. The detective’s

testimony was still fresh in the jury’s mind immediately after

lunch when the defendant took the stand and told a different

story about where he got the car. When the time came for

the prosecutor to cross-examine the defendant, it was natural,

indeed necessary, for the prosecutor to ask about the clear

conflict in the two stories. After reminding the defendant of

his testimony on direct about the location of the stolen car, the

prosecutor asked: “Don’t you think it’s rather odd that if it

were the truth that you didn’t come forward and tell anybody

at the time you were arrested, where you got that car?” This

Charles v Anderson 610 F2d 417 43a

question could have been phrased better because it is unclear.

It does not directly allude to the conflict in the story the de-

fendant told at trial and the story he told the detective. The

question received an evasive answer, “I wasn’t charged with

auto theft, I was charged with murder.” But the prosecutor

then tied the question down clearly to the prior inconsistent

statement:

Q: This is a rather recent fabrication of yours isn’t it

not [sic]?

A: No, it isn’t.

Q: Well, you told detective LeVanseler back when

you were first arrested, you stole the car back on Wash-

tenaw and Hill street?

A. Never spoke with Detective LeVanseler.

{610 F2d 424]

We are dealing here with impeachment on cross-examina-

tion of a hostile witness. On the subject in question, the loca-

tion of the stolen car, the defendant never stood mute in the

face of accusations or claimed his privilege. He never invoked

his constitutional privilege to remain silent. In fact, he did

not remain silent at all when interrogated after his arrest or

at trial. He gave two stories which were graphically incon-

sistent. There was no silence for him to rely on or for the

prosecutor to ask about. Since there was, in fact, no silence

at any time concerning the location of the car, I do not think

it plausible to say silence, rather than the prior inconsistent

statement, is what the prosecutor was asking about.

On the other hand, in Doyle v. Ohio, the main precedent

cited by the Court for its position, the defendant made no

statement at the time of his arrest but instead, invoking his

fifth amendment privilege, remained silent then and also at

44a Charles v Anderson 610 F2d 417

a later preliminary hearing. Repeatedly on cross-examination,

the prosecutor in Doyle asserted a conflict between the de-

fendant’s story at trial and his pretrial invocations of the

privilege. Nothing in the majority opinion in Doyle, or in

Justice Stevens’ opinion for three members of the Court, sug-

gests that the Court would find any admissibility problem

had the defendant instead made an inconsistent statement at

the time of arrest or at the preliminary hearing.

In the heat of cross-examination of a hostile and evasive

witness in a criminal trial, questions and answers are often

unclear. But the ambiguity of the prosecutor’s initial ques-

tion was quickly cleared up by the next series of questions

which focused on the inconsistency between the defendant’s

trial testimony on direct examination and a prior statement

given after his arrest.

Molded by the courage of Sir Thomas More, the fifth

amendment’s great protection of individual dignity assures

the accused that he will not be forced to speak or jailed for

silence. Fulfillment of this same high purpose suggests that

silence is not required in the face of accusation and law

officers are not obliged to disregard the words of the accused

when he chooses to explain.

Order Denying Petition for Rehearing 45a

No. 79-1158

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GLENN CHARLES,

Petitioner-Appellant,

v.

CHARLES ANDERSON, Warden,

Respondent-Appellee.

ORDER DENYING PETITION FOR REHEARING

Before EDWARDS, Chief Judge, MERRITT, Circuit Judge,

and PHILLIPS, Senior Circuit Judge.

No judge of the court in regular active service having moved

for rehearing en banc, the petition for rehearing has been

referred to the hearing panel for disposition.

Upon consideration, it is ORDERED that the petition for

rehearing be and hereby is denied. Judge Merritt would

grant the petition for rehearing for the reasons stated in his

dissenting opinion filed December 4, 1979.

Entered by order of the court.

[s/ John P. Hehman]

CLERK